European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 56416/07
Valeriy Vladimirovich RUMMO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 29 November 2011 as a Committee composed of:

Mark Villiger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 27 November 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Valeriy Vladimirovich Rummo, is a Ukrainian national who was born in 1953 and lives in Odesa. He is represented before the Court by Mr S. Molchanov, a lawyer practising in Odessa.

The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice.

On 9 August 1999 the applicant along with T., S. and B. headed by car for Odessa. They had a traffic accident because of which T. died and S. and B. received injuries.

On 11 November 1999 criminal investigations were instituted into the accident. In the course of the investigations the forensic expert P. first concluded that T. had been the driver of the car; subsequently he established that T. had been a passenger. The investigators concluded that the applicant was responsible for the accident and on 21 September 2000 they charged him with violation of traffic rules.

Between 14 August and 19 September 2000 five expert examinations were carried out. The applicant challenged the expert examinations, alleging that they had been carried out in breach of his procedural rights. On 29 August 2003 the Malynovskyy District Court of Odessa found that the examinations had been in accordance with the law. On an unspecified date it returned unexamined the applicant’s appeal against its decision as it was not subject to appeal.

Between 21 and 23 September 2000 the applicant was kept in detention. He alleges that he was not given food and was denied access to a lawyer. According to the applicant, on 25 September 2000 the investigators rejected his request to be provided with a lawyer. He also states that the investigators and, subsequently, the trial courts refused to allow M.A. and M.S., members of a local non-governmental organisation for the protection of motorists’ rights, to defend him in the proceedings. He did not raise these complaints before the higher courts.

On 13 February 2002 the case was referred for trial to the Ovidiopol Court. Subsequently, it was redirected to the Malynovskyy Court. The applicant was represented by two lawyers in the trial.

Between 28 March and 31 May 2005 the applicant was again placed in detention. On 10 May 2005 the Odessa Regional Court of Appeal returned unexamined his appeal against the decision of 28 March 2005 ordering his detention, for unspecified reasons.

By a judgment of 22 August 2005, the Malynovskyy Court found that the applicant had been the driver of the car and that he had caused the accident; sentenced him to seven years’ imprisonment and amnestied him. The court based its judgment on the statements of ten witnesses, including eye-witnesses, and an expert K. summoned upon the applicant’s request, the written statements of eleven other witnesses obtained during the pre-trial investigations and seven expert examinations. The court refused to admit the initial conclusion of the expert P. that T. had been the driver of the car, finding that it had been unsubstantiated.

According to the applicant, the witnesses mentioned in the judgment were heard by the Ovidiopol Court - not by the Malynovskyy Court - and that the court rejected his request to call and hear some of the witnesses on his behalf. He did not complain about that before the higher courts.

In his appeal the applicant complained that the Malynovskyy Court had misinterpreted the law, wrongfully assessed evidence before it, wrongfully relied on the expert examinations carried out between 14 August and 19 September 2000, refused to order additional expert examinations and to summon the expert P.

On 20 December 2005 the Court of Appeal, in the applicant’s and his lawyer’s presence, upheld the above judgment having reclassified criminal charges against the applicant.

On 29 May 2007 a panel of three judges of the Supreme Court, sitting in camera, rejected, as unsubstantiated, the applicant’s appeal in cassation based mainly on the same arguments as his previous appeal.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

The applicant also complained: (i) under Article 5 §§ 1 (c), 3 and 4 about the unlawfulness of his pre-trial detention, (ii) under the same provisions that between 21 and 23 September 2000 he was not given food, had no access to a lawyer, and was not brought promptly before a judge (iii) under Article 6 § 1 about the outcome and unfairness of the proceedings, stating in particular, that the courts wrongfully relied on the expert examinations subsequent to the first examination in the case, that his appeal against the decision of 29 August 2003 was not examined, that the ruling of 10 May 2005 was unfair and that the hearing at the Supreme Court was not public; (iv) under Article 6 § 3 (c) that M.A. and M.S. were not allowed to defend him and that on 25 September 2000 the investigators did not provide him with a lawyer; (v) under Article 6 § 3 (d) that the courts did not summon the expert P. and some of the witnesses on his request and did not order additional expert examinations; that the witnesses mentioned in the judgment of 22 August 2005 were heard by the Ovidiopol Court, and not by the Malynovskyy Court; and (vi) under Article 11 that, by not allowing M.A. and M.S. to defend him, the authorities breached his freedom of association with others.

THE LAW

A.  Length of proceedings complaint

The applicant complained about the length of the crimnal proceedings against him. He relied on Article 6 § 1 of the Convention of the Convention which, in so far as relevant, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

By letter dated 28 March 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government of Ukraine acknowledge the excessive duration of the consideration of the applicant’s case before the national authorities.

I, Valeria Lutkovska, the Government Agent before the European Court of Human Rights, declare that the Government of Ukraine offer to pay ex gratia 1,800 (one thousand eight hundred) euros to Mr Valeriy Vladimirovich Rummo.

The Government of Ukraine therefore invite the Court to strike the application out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c ) of the Convention.

This sum ex gratia which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable, and converted into the national currency of the respondent State at the rate applicable at the date of settlement. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this amount within the said three-month period, the Government undertake to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

This payment will constitute the final resolution of the case.”

The applicant objected to the Government’s declaration.

The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also reiterates that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).

Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).

Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the matter, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

Accordingly, this part of the application should be struck out of the list pursuant to Article 37 § 1(c).

B.  Remainder of the complaints

Having carefully examined the remainder of the application in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration in respect of the excessive length of the criminal proceedings;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Stephen Phillips Mark Villiger
Deputy Registrar President